The Mackay Amendment

Paul Waugh reported a few days ago that the government would "look favourably on an amendment by Lord Mackay", so I thought that I would investigate what this amendment does. Since the Bill amends several other bills the only way to understand an amendment is to follow the amendment's instructions.

The National Health Service Act 2006 starts with a clause on the responsibilities of the Secretary of State:

1 Secretary of State's duty to promote health service

(1) The Secretary of State must continue the promotion in England of a comprehensive health service designed to secure improvement—
(a) in the physical and mental health of the people of England, and
(b) in the prevention, diagnosis and treatment of illness.
(2) The Secretary of State must for that purpose provide or secure the provision of services in accordance with this Act.
(3) The services so provided must be free of charge except in so far as the making and recovery of charges is expressly provided for by or under any enactment, whenever passed.

The current version of the Health and Social Care Bill will change this clause to:

1 Secretary of State’s duty to promote comprehensive health service

(1) The Secretary of State must continue the promotion in England of a comprehensive health service designed to secure improvement—
(a) in the physical and mental health of the people of England, and
(b) in the prevention, diagnosis and treatment of illness.
(2) For that purpose, the Secretary of State must exercise the functions conferred by this Act so as to secure that services are provided in accordance with this Act.
(3) The services provided as part of the health service in England must be free of charge except in so far as the making and recovery of charges is expressly provided for by or under any enactment, whenever passed.

Note that subsection of the 2006 Act says "must for that purpose provide or secure the provision of services" and this is amended to "must exercise the functions conferred by this Act so as to secure that services are provided". The contentious point is the removal of the requirement to provide, the implication is that the Secretary of State will no longer provide health services.

The Mackay amendment changes the 2006 Act to say:

1 Secretary of State's duty to promote health service

(1) The Secretary of State must continue the promotion in England of a comprehensive health service designed to secure improvement—
(a) in the physical and mental health of the people of England, and
(b) in the prevention, diagnosis and treatment of illness.

2) For that purpose, the Secretary of State—
(a) retains ultimate responsibility to parliament for the provision of the health service in England, and
(b) must exercise the intervention and other functions of the Secretary of State in relation to that health service so as to secure that services are provided in accordance with this Act.

(3) The services so provided must be free of charge except in so far as the making and recovery of charges is expressly provided for by or under any enactment, whenever passed.

(4) For the purposes of this section, the intervention functions of the Secretary of State in relation to the health service in England are the functions of the Secretary of State under—
(a) section 13Z1 (failure by the Board to discharge any of its functions),
(b) section 253 (emergency powers),
(c) section 82 of the Health and Social Care Act 2008 (failure by Care Quality Commission to discharge functions),
(d) section 67 of the Health and Social Care Act 2011 (Monitor: failure to perform functions),
(e) section 242 of that Act (failure by NICE to discharge any of its functions),
(f) section 266 of that Act (failure by the Information Centre to discharge any of its functions), and
(g) section 285 of that Act (breaches of duties to co-operate).

The changes are subsection 2 and 4. This splits the responsibility into two. The first part says that Lansley has the ultimate responsibility for the provision of health services. This clashes with clause 4 which says that the Secretary of State must promote autonomy of the health service. I suspect that clause 2(a) will not be accepted because to do so would require that the autonomy clause is removed, and this is known to be one of Lansley's red lines.

The new part is in subsection 2(s). To explain its significance let's go back to Baroness Williams' opposition to the Bill at the Lib Dem conference in September. The Baroness said that a "major health emergency in the country was an example of when the secretary of state's role was unclear". Section 2(b) and section 4 explains the intervention that the Secretary of State is able to make in an emergency.

Section 4 lists several sections from the H&SC Bill and several existing acts. Section 13Z1 (a new section added to the NHS 2006 Act by the H&SC Bill) says that the Secretary of State can intervene if he considers that the NHS Commissioning Board has failed to discharge its duties and similarly section 82 of the Health and Social Care Act 2008 says that the Secretary of State can intervene if the Care Quality Commission fails to discharge its functions.

Section 253 of the 2006 Act says that the Secretary of State can intervene in a service in an emergency, but crucially Foundation Trusts are excluded. Section 67, 242, 266 and 285 of the Health and Social Care Bill already say that the SoS can intervene if one of these bodies (Monitor, NICE, the Health and Social Care Information Centre) fails, or if these bodies fail to co-operate with each other.

Section 4 of the Mackay amendment says nothing new, it merely lists existing sections in the new Bill or sections in existing acts when the Secretary of State can intervene. I cannot see that we gain anything by having the Mackay amendment, so I fail to understand why Lib Dem would consider this as a solution.